McCart v. Cain, 16828

• Decision Date: 19 May 1967
• Docket Number: No. 16828,16828
• Citation: 416 S.W.2d 463
• Parties: Alice W. McCART, Appellant, v. Roy CAIN et al., Appellees. . Fort Worth
• Court: Texas Court of Appeals

Page 463

416 S.W.2d 463

Alice W. McCART, Appellant, v. Roy CAIN et al., Appellees.

No. 16828.

Court of Civil Appeals of Texas Fort Worth.

May 19, 1967.

Rehearing Denied June 16, 1967.

McGown, Godfrey, Decker & Courtney, and John W. McMackin, Fort Worth, for appellant.

Freeman & Ward, Fort Worth, for appellee G. W. Wilemon.

Thompson, Walker, Shannon & Gracey, Fort Worth, for appellee Dan Yarbrough.

Donald C. Bubar, Fort Worth, for appellee Roy Cain.

Garrett & Garrett, Fort Worth, for appellees Margaretta G. Beavers, Rev. C. Avery Mason, John R. Halsell, Jr., et ux.

OPINION

LANGDON, Justice.

This suit involves alleged restrictions against the use of Lots 21 through 30, inclusive, and the West 15 feet of Lot 31, Block 26, Chamberlain Arlington Heights, First Filing, to the City of Fort Worth, Tarrant County, Texas, and a triangular tract of land out of the extreme Southwestern corner of Lot 15, Block 26, for other than single one-family residences.

For convenience, appellant, Alice W. McCart, will be referred to throughout as 'plaintiff,' and the various appellees will be referred to as 'defendants.'

Suit was brought by plaintiff under the provisions of Article 2524--1, Vernon's Ann.Tex.Civ.St., generally known as the 'Declaratory Judgments Act.'

The case came to trial on Plaintiff's Second Amended Original Petition in which it was alleged that there were no deed restrictions whatsoever of record against the property which is the subject matter of this suit; that it was proposed to build a town-house condominium project on such property; and that the defendants had claimed and were claiming that implied restrictions upon the property prohibited the proposed construction. Defendants had also made known their intention to attempt to block the proposed construction.

Defendants answered by general denial and further alleged that plaintiff or her predecessors in title as owners of all of the lots presently belonging to defendants as well as the lots which are the subject matter of this suit developed same under a general scheme or plan whereby all of said lots would be devoted to the erection of single one-family residences.

Trial was to the court without a jury. The court entered judgment that all of the lots which were the subject matter of this declaratory judgment action were burdened with a restrictive covenant limiting the use of same to single one-family residences.

The plaintiff contends that the trial court erred in (1) refusing to find that the Burden of Proof was upon the defendants to prove a general scheme or plan of development (2) entering judgment restricting the use of plaintiff's property to single one-family residences because as a matter of law the evidence adduced at the trial did not support such judgment and further because there was no evidence or insufficient evidence to support the court's finding to the effect that plaintiff's property was so restricted.

We reverse and remand.

Some findings of facts made and filed by the court are summarized as follows:

(a) The deed to the property presently owned by the plaintiff contains no deed restrictions restricting its use to single family dwellings. There are no restrictions of record against the property .

(b) Defendants, who are owners of property in Block 26 and the North one-half of Block 33 of Chamberlain Arlington Heights, First Filing, have asserted that there exists an implied reciprocal covenant on the plaintiff's land by virtue of restrictions to single family dwellings contained in the various deeds to the defendants or their predecessors in title.

(c) There is no evidence that any purchasers of lots in Blocks 26 or 33, from plaintiff's predecessors in title had any actual knowledge of the restrictions on lots to other purchasers in said blocks or that the purchasers of said lots relied in any way upon the restrictions in deeds to other purchasers in said blocks.

(d) There is no evidence of any maps, plats, brochures or other type of written matter representing that the property which is the subject matter of this suit would be restricted according to a common scheme or plan.

(e) The only evidence of restrictions, express or implied, covering lots (of the defendants) in Blocks 26 and 33, is contained in the deeds from plaintiff's prodecessors in title to the purchasers of lots in said blocks. The restrictions contained in such deeds are not uniform or identical and contain no language referring to a common scheme or plan for the development of said blocks.

In Texas the law is well settled to the effect that in order to claim or enforce a restrictive covenant on another's land, it is necessary for the party claiming the restriction to show its existence and further that it was for the benefit of his land.

In 20 Am.Jur.2d 890 § 323, Burden of proof, it is stated, 'The burden of establishing the existence and the right to the benefit of a restriction is upon the party who asserts it. Thus, the burden of proof is upon the parties seeking to enforce restrictions to establish that the necessary legal steps have been taken to render such restrictions effective, binding, and mutually enforceable, or that they were imposed on the land for the benefit of land owned by such parties.'

'In every case where parties seek to enforce a restrictive covenant the burden of proof is upon them to establish that the covenant was imposed on defendants' land for the benefit of land owned by them.' Davis v. Skipper, 125 Tex. 364, 83 S.W.2d 318, 321, 322 (1935); Baker v. Henderson, 137 Tex. 266, 153 S.W.2d 465, 469 (1941); Brehmer v. City of Kerrville, 320 S.W.2d 193, 195 (Tex.Civ.App., 1959, no writ hist.).

'As before mentioned, there is nothing in the deeds executed by the common grantor, or in the recorded plat or dedication executed by him, showing that the restrictive covenants in the deed were intended for the benefit of other grantees, or that gave to either the right to complain of their violation. * * * Standing alone, and aside from matters extrinsic written instruments, the presumption should be indulged that the restrictions were inserted in the deeds for the benefit alone of the grantor.' Monk v. Danna, 110 S.W.2d 84, 85, 86 (Tex.Civ.App., 1937, no writ hist.).

'In actions to enforce a restriction, a plaintiff to whom a right of enforcement has not been expressly granted has, generally, a burden to show a...